While Eugene Volokh’s analysis of the suit was well done, I disagree with a couple of aspects of his follow-up post, regarding the practical downsides of filing a libel suit.

Prof. Volokh is correct, I think, to warn of the general dangers of filing libel suits. The suit itself publicizes the allegation, and provides a legal vehicle for the discovery of further embarrassing revelations about the plaintiff(s). This is a real concern that should not be minimized.

But I think Prof. Volokh overstates the concern that law firm partners are going to come to court and start listing off the deficiencies of the plaintiffs as job applicants:

[T]he result will be testimony from sixteen prominent law firms explaining why they didn’t want to hire Doe I. What’s more, the law firms aren’t being painted as the bad guys in this law suit, so it’s not a case where (for instance) someone sues an employer for discrimination and the employer’s badmouthing of the plaintiff could be put off to the employer’s racism or sexism or what have you. It’s just sixteen law firms that come across as largely disinterested bystanders (despite the possible reason to shade the truth that I mention above, a reason that is likely not to be prominent in observers’ mind) and that talk about how Doe I botched her interview, or about how her grades were really pretty weak.

Oh, I sincerely doubt that. I can’t in my wildest dreams imagine that we will see hiring partners talking about a plaintiff’s weak interview or poor grades. Unless there is a paper trail located in discovery that forces the hiring partners to acknowledge specifics regarding a particular candidate, their testimony (if it happens at all) is likely to be incredibly bland. It will consist of assertions that the plaintiff was a great applicant, together with explanations that “other applicants better fit our specific needs.” I deeply doubt that the plaintiffs have any realistic cause to worry about a hiring partner ticking off their deficiencies and faults; that would send a very scary message to future applicants, and the law firms know it.

Volokh thinks that the hiring partners might be candid because they can’t be sued for their honest testimony. But the danger isn’t being sued — it’s having the “buzz” about your firm be that nobody interviews there, because the hiring partner might trash your character or credentials at some future date.

Moreover, I think that Volokh, Althouse, Ilya Somin, and Glenn Reynolds (law professors and prominent bloggers one and all!) all trivialize the effect that allegations like the ones in this complaint might have on a young lawyer’s career. For example, Volokh quotes his co-blogger Somin as saying:

[E]ven if law firm hiring committees did believe the comments, … [m]ost big law firms care very little about associates’ personal lives outside the office, so long as those associates are racking up the billable hours. Even if one or two firms were deterred from making offers to this student by the internet comments, it is highly unlikely that all sixteen (or even a large percentage of them) were.

I agree that once as associate is on board, law firms (at least initially) care little about their social lives. But I disagree that it’s true when hiring decisions are made. There are so many qualified applicants that it is easy to envision a scenario where any potential negative is a disqualifier.

Take a simple hypothetical: A and B are both excellent candidates, but A has a nasty Internet trail and B doesn’t. Might not a rational hiring partner prefer B to A? Why buy potential trouble when you can avoid it? If the issues that surface in the Internet trail loom large two or three years down the road, the hiring partner may be taken to task by his colleagues for having missed or ignored the warning signs. Better to avoid the problem altogether. That’s what the institutionally conservative individual would do — and if you don’t think law firm partners are institutionally conservative, you don’t know law firm partners.

I continue to hold this view, even though disagreement with my opinion has been expressed by several tenured law professors who haven’t interviewed for a job in years.

Speaking of which, it is indeed quite a spectacle to watch law professors with established reputations and prominent spots on the Internet — both of which they can use to counter any unjust criticism of themselves — labeling as oversensitive fledgling lawyers with no established reputation and no platform for responding to scurrilous allegations. I think it’s nice that these professors consider themselves “thick-skinned about Internet trash-talk,” as Glenn Reynolds put it — but they have established reputations to fall back on, that were formed before the trash-talk came. These women haven’t had a chance to form their reputations; this controversy may well be the dominant impression many people have about them — and thanks to Google, that could well be the case even absent this lawsuit.

I understand the argument that defamation causes greater harm to people with established reputations, but I don’t agree that this is always the case. I think that sometimes the greatest harm can be caused to people with no other reputation to fall back on. For example, if a rumor were spread at the Torrance courthouse (where I don’t work) that I’m devious, that would arguably harm me more than a similar rumor at Compton (where I do work), because the people in Compton know me, and know it’s not true — so they’d be less likely to believe it.

I find myself most disturbed by the dismissive attitude of Althouse. Reading through her comments, I see her labeling the women as “imperious” and “sensitive” and running off to government for help by filing a lawsuit. But I see repeated evidence that she is minimizing the gravity of the allegations the women are making. For example, Althouse says in a comment:

I don’t have a problem with claims for defamation and there may be some in amongst the jumble of that complaint.

There “may be”? There most assuredly are.

The impression conveyed here is: I can’t be bothered to read the complaint and determine whether there really are valid defamation claims, but I really want to argue for free speech and not be overly concerned with the actual facts at issue. Similarly, she says:

Even if they believe it, what’s to believe? That’s she’s really good looking? They can see what she looks like. They might think she has herpes? Why would that matter? That she causes sexual desire in men? They can see that by looking at her too. That there are some idiots on a chat board who type about their sexual desires? It has no relevance.

How about that she committed sexual assault, or slept with an admissions dean to get into Yale? If a hiring partner believed those allegations, would it matter? Of course it would — but Althouse doesn’t mention those allegations.

I think the bottom line for Althouse is that she reacted to a silly comment made by one of the women’s lawyers — that the suit was over “the scummiest kind of sexually offensive tripe” — and didn’t really bother examining the specifics, to see that the lawsuit is about much more than simply annoying comments. Now that this point has been made, she appears to continually minimize the seriousness of the allegations, for whatever reason.

In any event, I’d like to see a little more sensitivity from all of these tenured professors concerning the real harm that comments like these can cause — when people have no developed reputation and no platform to respond, as all of these professors have.

UPDATE: Reading this post over, I think I’ve been a little too sarcastic. I’ll leave it as-is, but if I had it to write again I would be a little less sharp with my words.

33 Responses to “More Thoughts on AutoAdmit — and on the Remarkable Thick Skins of Tenured Law Professors with Widely Read Blogs”

“ Might not a rational hiring partner prefer B to A?”

Given the general tenor of research into social cognition and suchlike, as well as studies on (plausibly unconscious) hiring discrimination*, I wouldn’t be terribly surprised if it turned out that hiring partners might not be entirely rational in this situation. (For example, even with a rational understanding that the comments and allegations and rape threats and etc. were in fact garbage, they might have a real effect beyond just conservative risk aversion). I should stress that I don’t know of any research specifically examining this – would be very interesting to see.

* ie, the astonishing acoustical phenomenon that causes women auditioning for an orchestra to sound markedly better when playing behind a curtain, so that the judges aren’t aware of what sex she is . . .

Fact is, Mr. Frey, I was denied tenure a few years ago, despite having publications to match people given tenure during that cycle…and having a large federal grant to support my research. My department was full of genuine jerks, and would not support me—since I was as good or better than they were, they could only argue that my “trajectory” didn’t look good—a measure that did not appear in the faculty handbook, nor in their other tenure decisions.. Nor would the Dean overturn that decision, even though (again) other people in that tenure cycle with fewer publications and no grants were receiving tenure. Ditto the Prez of the university.

The reason I bring this up is because when I was looking for new jobs, I had a heck of a time, because of a tenure situation that didn’t look reasonable. So it is easy to say that trashtalk will not affect someone’s chances of landing a job.

I KNOW that isn’t true. And the tenured people taking the “long” view should be ashamed of themselves.

I don’t think you are sarcastic enough, because just the comments on your own earlier threads shows Prof. Althouse is one of the most thin-skinned people on the Internet. She just has a widely-read blog and a serious job that she can use as ammunition against her opponents. Does I and II don’t.

You seen like too much of a gentleman to understand why Althouse continues to minimize the gravity of the defamatory statements (it beggars belief that she doesn’t think a false accusation that Doe I has a communicable venereal disease is damaging; she must travel in different dating circles than I ever did). Let me explain. She really doesn’t like the plaintiffs. Why, I don’t know, but the fact that the plaintiffs apparently share a physical trait with Jessica Valenti, an obscure woman about whom Althouse made a gratuitious, false, and insulting claim, may have something to do with it. Wahteverm fully exploring her motives leaves the realm of anything this blog covers, and enters psychology.

I completely agree with your post. I previously served on the hiring committees for two law firms, one with approximately 25 lawyers and one with over 75 lawyers. I guarantee that, in my prior law firms and in every other firm in this region, associates with significant or questionable baggage won’t be hired. Whether they deserve it or not, these Yale law students have baggage.

As early as their first day on the job, new associates are privy to much of the internal workings of their law firms and to the legal files of the lawyers with whom they work. They have access to confidential information that can be valuable and/or can dramatically affect their clients’ welfare. Law firms take a gamble on every new lawyer they hire, and anything that calls the lawyer’s reputation into question is relevant.

I think these law professors may be lacking in experience with the concerns of law firm hiring but, even if that is incorrect, I can’t understand why they are willing to immediately issue what amounts to a summary judgment on this complaint. Typically, law school professors are the ones who highlight issues that preclude summary judgment while everyday lawyers argue that summary judgment is appropriate. How ironic that in this real world example, it’s the everyday lawyers who want to give these students their day in court.

As a footnote, Patterico, I’ll take your word for it that you were being sarcastic and regret the tone of your post. However, when I first read this post, what I heard was an incredulous tone and I know that was my reaction when I read the comments by Instapundit and Althouse.

“My favorite weird comment was some woman who said we must all have daddy issues and that we ‘should stop and smell the roses, not the penises you wish you had.’ I was like, wow, someone just told me to stop smelling the penises.”

Christoph, you can find a summary of Althouse vs. Valenti here, and it’s notable that (once again) Althouse comes across as downright vicious in the romments, much more so than the original post. Excerpts:

Valenti herself eventually joined the fray, cracking back, “It’s so nice to see women being judged by more than their looks. Oh, wait…” Althouse tried to rationalize her sniping by accusing Valenti of posing for the photo [of Bill Clinton with bloggers, Valenti being front and center]. Valenti replied: “It’s a picture; people pose. And I’m not sure I understand your logic anyway. If I ‘pose’ for a picture (as opposed to sulking and hunching over?) then I deserve to be judged for my looks? I don’t see anyone talking shit about the other bloggers smiling pretty for the camera.” Fair points all, in our opinion.

But Althouse just dug in deeper, writing, “Jessica: I’m not judging you by your looks. (Don’t flatter yourself.) I’m judging you by your apparent behavior. It’s not about the smiling, but the three-quarter pose and related posturing… Posing in front of him like that irks me, as a feminist. So don’t assume you’re the one representing feminist values here. Whatever you call your blog…”

Yikes! Althouse seems to be engaging in the oldest form of female-baiting: Reducing other women, especially one’s professional competitors, to their appearance and sexuality. To knock Valenti for looking attractive and then hit her with the inverse criticism “Don’t flatter yourself” is behavior unworthy of the cattiest locker room. What’s more, all this “intern”-related sniping is a comment on Clinton, not on Valenti. Althouse seems to be trying to make the point that feminists shouldn’t give Clinton a photo op anyway because of the Lewinsky scandal, but unfortunately, the woman takes most of the blame. […]

Althouse concludes that “Jessica writes one of those blogs that are all about using breasts for extra attention.” Kind of like bloggers who complain about other women’s breasts for extra attention.

Interestingly enough, Althouse is also a “Democrat” in the mold of Joe Lieberman—not only in continued support of the Iraq War, but in their much more damaging (to the party) predilection for making common cause with Republicans to criticize other Democrats while never criticizing the Republicans themselves. She seems to be a “feminist” in the same broken mold, allied with the manifestly misogynistic pseudonymous cowards of AutoAdmit.

Christoph, my response with links seems to be caught in the spam filter despite several small edits on my part to try again. If Patterico doesn’t clear it by morning I’ll revise and extend. Actually, revise and shorten is probably what’s needed to clear the filter.

I must admit that I lean a bit more towards ‘that’s just how stupid people act, and no one would take it seriously’ perspective. But, hey, I have a daughter and I’m having trouble getting my post-degree job thanks to various factors as well, so I can sure see that side, too.

I think AA probably thinks she worked her way up through a vicious environment and these people should do the same.

Yea, she probably has trouble feeling sorry for people for being ‘too beautiful’, but who doesn’t? I think it’s a little unfair that people toss that issue at her so much.

It’s a ridiculous attack of Althouse’s. Even if she was posing for a picture, who doesn’t? Even if she wanted to be positioned near the president, who wouldn’t? (Well, I wouldn’t ’cause it’s Clinton, but I’m assuming you’re a supporter.)

Total jealousy on Althouse’s part and silly too.

But it’s only one incident, and I’ve done dumb things regarding jealousy. To continue a theme, who hasn’t?

I’m more concerned with Althouse’s trivializing the issue at hand: the threats and libel on Doe 1 and Doe 2.

Yea, she probably has trouble feeling sorry for people for being ‘too beautiful’, but who doesn’t? I think it’s a little unfair that people toss that issue at her so much.

But that’s Althouse’s characterization of the issues with Valenti and the AutoAdmit plaintiffs — and a bizarre characterization it is. Now being threatened with rape and/or being sexually demeaned across the internet just means that you’re “too beautiful?” It’s a compliment?

Do away with tenure and we will all be free of dreadful groupthink. American universities are no longer the bastion of pluralistic, open-minded discourse it was in the past rather it has evolved into a massive Ivory Tower inculcating collective idiocy.

Christoph, I do not intend to be generous to Althouse in this matter. Her bizarre behavior about Valenti (more useful comments) was a dry run for her cruelty towards Does I and II here. As you can see, we are in complete agreement about Althouse’s trivialization of libel. Patterico is generously suggesting that Althouse didn’t really familiarize herself with the complaint and then, confronted with details, dug a hole for herself in the comments. But what I, less generously, realized is that this libel case is not the first time Althouse has started with a factually-challenged provocative attack on young women (probably of the type generally self-described as feminist, if not in a sense Althouse approves of) followed by honesty-challenged Althouse comments re-interpreting her own statement and motives while failing to address the factual issues raised against her.

Because I am not a major pundit, I made the crass (although plausible) suggestion that the young women’s breasts were the common denominator. While this may be (indeed, I think is) true and relevant, the more significant aspect is Althouse getting to do her shtick as a feminist-against-other-feminists even if it entails getting on the wrong side of a libel and stalking case.

It was really the title and maybe one line in the post that, on reflection, seemed a little harsh as I read it over. No big deal; I still think the points I made were valid, I just would have moderated a couple of lines.

Ann Althouse’s blog is often intriguing but at times can be quite irritating. Her posts are spontaneous and stimulating. She offers keen insights and fresh views of current topics. Unfortunately, her good point – that she posts spontaneous, insightful reactions to current events – is also her bad point, because she stubbornly clings to her first impressions even when they later seem questionable. The fact that this doesn’t happen often makes it even more noticeable.

That’s one of the reasons I like Patterico’s website. His insight is first-rate but on the rare occasions when additional facts call his conclusions into question, he says so.

I posted over at Ann Althouse’s site and defended her. Ann’s right. The plaintiffs are basically full of themselves. Sure, they have pleaded a case for defamation. So what?

The plaintiffs’ make the stupid allegation that they were not hired because of comments on AutoAdmit. As a guy who has done lots of hires, I feel safe in saying that this misunderstands the situation. Keep in mind that background information is only considered for those few (and it is always just a few out of many) that the firm is seriously interested in hiring. I have had very similar things to the allegations in the complaint come up on background checks. They have never influenced me and I doubt they would influence any hiring partner. All we have are hateful malicious things being said about the candidate. The plain fact is gossip about a candidate is just useless in giving me any information except that some people don’t like him/her. If a lawsuit were filed by a candidate, I would surely ask about it.

Let me add a bit more about why I am sure this sort of thing (absent a lawsuit) would not be on hiring partner’s radar screen. First, it’s not on mine—I know, I’ve lived it—and I’m a very conservative Christian who represents some Christian Schools. Second, giving some internet yahoo a decisive voice would mean taking his judgment over what I saw and heard with my own eyes and ears. Will never happen (forget about the silly smoke-fire stuff). Third, clients don’t care about associates, particularly new associates. BTW, I checked with a friend who is the hiring partner at a big name firm. She felt the same way I do.

Bottom line, the plaintiffs, at best, have a case for minimal damages. Maybe if one of the aforesaid yahoos is very rich, they might get some meaningful punitive damages. And, of course, there will be the fun of making life miserable for others. But lots of men and women have awful stuff said about them all the time on the internet and at work and a home. They manage to go on.

Ann’s right: It takes a privileged type of person to think that they are so special that they just must sue.
Ann’s right: This suit may make society more litigious, but it will not make it better.

I agree that clients don’t care about new associates or summer associates, and I also agree that law firms don’t let “internet yahoos” make their hiring decisions. But I think you missed Patterico’s point. His point is that – all things being equal – a law firm would pick an associate who doesn’t have an internet history over another associate who has suspect postings. It seems to me that the only law firms that would deny this is true are those that never Google potential associates’ names. There might be many firms that don’t run an internet search in connection with hiring decisions, but I suspect it’s more common today than it used to be and it will be even more common tomorrow.

The plaintiffs’ make the stupid allegation that they were not hired because of comments on AutoAdmit.

Mark,

I agree that this is a weak allegation: we’re from Yale and we deserve jobs — if we didn’t get them, it must be someone else’s fault!

But here, it very well could be someone else’s fault. You wouldn’t take this stuff into account, but I’d be willing to bet some people do.

I take it from your comment that you are against any and all defamation suits. But I disagree with the notion that anyone who files such a suit thereby shows themselves to be overly self-absorbed. Maybe they have just decided to fight back.

Luckily for me (and for you) I am stupid and can’t contain more than three thoughts in my mind at a time. Therefore, I can cut to the chase without chasing.

My simple brain asks if there is a difference between 1; a person who blogs or posts on a website, 2; people who comment on said posts using their real names, and 3; people who neither post nor comment at all. My simple brain tells me that person three should have all the protections that libel laws allow; persons one and two can go fuck themselves.

I don’t think it makes any difference whether or not prospective employers do a Google and turn up the libels or not, if you are shooting your mouths off on the web you deserve all the shit that comes with it.

BTW, the two Google entries on me that say I’m a pedophile are incomplete. Two arrests and NO convictions is complete, thank you very much.

And, of course, there will be the fun of making life miserable for others.

I had to read mcallen3′s comment twice to realize that it’s the plaintiffs he believes are having the fun of making life miserable for others with their lawsuit. The possibility that the defendants enjoyed making life miserable for the plaintiffs with their pseudonymous libels either didn’t occur to him, or, worse, didn’t matter.

So, what if none of the pseudonyms can be identified? The registration on AutoAdmit is a joke (no verification whatsoever–the process is a sham) and Cohen had already purged any server log archives he had and he stopped logging IP addresses.

Oh, and give up trying to keep the plaintiffs’ identities secret. The complaint gives more than enough information to google up the girls’ names. From Associated Content dated April 19: “In one particular case, two Yale Law students, namely Heide Iravani and Brittan Heller, claimed their employment prospects were in jeopardy due to allegedly defamatory comments posted on AutoAdmit.” Let’s not repeat the previous ridiculousness over trying to keep Crystal Mangum’s name undisclosed even after she had her own Wikipedia entry.

I agree with the Wanderer’s points: it’s not just absurd to expect Brittan Heller and Heide Iravani to remain unnamed…it’s actually absurd for them to CLAIM it. What are they asking for? anonymity
What are they doing? trying to steal others’ anonymity.